Overview: Today's hands-off approach can be tomorrow's negligent hiring lawsuit. As a result, many employers turn to a variety of preemployment screening measures to find out ahead of time about any warning signs involving job applicants.
These measures can include employee background checks, reference checks, credit checks, drug tests, job-related aptitude tests and post-offer medical examinations. However, HR professionals should be certain to check their state employment laws as well as federal statutes to ensure that their testing efforts do not overstep.
If an employer decides to engage in any of these testing measures, it must do so across-the-board with all applicants in a consistent fashion. A failure to do so could lead to later discrimination claims.
Trends: Some states prevent employers from asking job applicants about arrests. Others have "Ban the Box" laws that prohibit employers from asking candidates to check off on an initial job application form if they have been convicted of a crime. This does not preclude such questions later in the selection process.
Employers also should be aware that several states limit the use of credit checks to certain positions where financial data, sensitive information or managerial responsibilities will be involved.
Author: David B. Weisenfeld, JD, Legal Editor
Updated to include forthcoming amendments to New York State Human Rights Law.
Updated to reflect expanded list of debilitating medical conditions under medical marijuana law, effective August 9, 2019.
Updated to reflect forthcoming new hire notice requirements under the Chicago Fair Workweek Ordinance.
Updated to reflect expanded list of serious medical conditions under medical marijuana law, effective July 20, 2019.
The 5th Circuit Court of Appeals has ruled that the EEOC may not enforce its Obama-era arrest and conviction records guidance against the state of Texas.
This form should be used by an employer to obtain parental consent prior to obtaining a background check from a third-party consumer reporting agency on a minor aged under 18 in order to comply with the federal Fair Credit Reporting Act. (FCRA).
This checklist may be used by an employer to comply with the Fair Credit Reporting Act's requirements when engaging a third-party consumer reporting agency to conduct background checks.
XpertHR has added a checklist and a form to assist an employer in conducting a background check with a third-party consumer reporting agency and complying with the Fair Credit Reporting Act (FCRA).
Updated to reflect forthcoming protections regarding salary history inquiries.
Updated to reflect preemption law in North Dakota regarding minimum wage, effective August 1, 2019.
HR Guidance concerning federal and state legal requirements on the screening and testing of job applicants.